Citation Nr: 0901776
Decision Date: 01/15/09 Archive Date: 01/22/09
DOCKET NO. 01-00 216A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to a permanent and total disability rating for
nonservice-connected pension benefit purposes.
REPRESENTATION
Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.W. Kreindler, Counsel
INTRODUCTION
The veteran served on active duty from August 1990 to
December 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2000 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). The veteran testified at a Board hearing at the RO in
June 2004. This matter was remanded in January 2005 and June
2007.
FINDING OF FACT
The veteran's disabilities do not permanently preclude him
from engaging in all forms of substantially gainful
employment consistent with his age, education, and work
experience.
CONCLUSION OF LAW
The criteria for the award of a permanent and total
disability rating for nonservice-connected pension purposes
have not been met. 38 U.S.C.A. §§ 1501,1502, 1521, 5107(b)
(West 2002); 38 C.F.R. §§ 3.340, 3.342(a), 3.655(b), 4.3,
4.7, 4.15, 4.17 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and
3.326(a), VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete
a claim, and of what part of that evidence is to be provided
by the claimant and what part VA will attempt to obtain for
the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).
The United States Court of Appeals for Veteran Claims
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C.A. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, the veteran claimed
entitlement to nonservice-connected pension benefits prior to
enactment of the VCAA. The veteran's appeal stems from a
February 2000 rating decision which denied entitlement. In
January 2005 and July 2007, VCAA letters were issued to the
veteran. Collectively, the VCAA letters notified the veteran
of what information and evidence is needed to substantiate
his claim, as well as what information and evidence must be
submitted by the claimant, and what information and evidence
will be obtained by VA. Id.; but see VA O.G.C. Prec. Op. No.
1-2004 (Feb. 24, 2004).
The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless. This matter was
remanded in January 2005 to provide VCAA notice to the
veteran, and thereafter this matter was remanded in June 2007
to ensure compliance with the assistance provisions of the
VCAA. The contents of the VCAA notices fully complied with
the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). The claimant has been provided with every
opportunity to submit evidence and argument in support of his
claim, and to respond to VA notices. Therefore, to decide
the appeal would not be prejudicial to the claimant.
In July 2007, the veteran was provided with notice of the
types of evidence necessary to establish an effective date.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Despite initial inadequate notice provided to the veteran,
the Board finds no prejudice to him in proceeding with the
issuance of a final decision. See Bernard v. Brown, 4 Vet.
App. 384, 394 (1993) (where the Board addresses a question
that has not been addressed by the agency of original
jurisdiction, the Board must consider whether the appellant
has been prejudiced thereby). In any event, since the Board
concludes below that the preponderance of the evidence is
against entitlement to nonservice-connected pension, any
questions as to the appropriate effective date to be assigned
are rendered moot.
The VCAA also provides that VA has a duty to assist claimants
in obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the
veteran's VA treatment records are on file. There is no
indication of relevant, outstanding records which would
support the veteran's claim. 38 U.S.C.A. § 5103A(c);
38 C.F.R. § 3.159(c)(1)-(3).
The veteran was afforded VA examinations pertaining to his
service connection claims which were ultimately denied.
38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran
was scheduled for VA examinations to assess the nature and
severity of his nonservice-connected disabilities, and his
ability to obtain and maintain employment. Such examinations
were scheduled in November 2007, January 2008, and February
2008; however, he failed to appear. When a veteran fails
without good cause to report for a necessary VA examination
requested by VA in conjunction with a claim, VA is not
obliged to attempt to provide another. Examples of good
cause include, but are not limited to, the illness or
hospitalization of the claimant, death of an immediate family
member, etc. 38 C.F.R. § 3.655(b). To date, the veteran has
not provided an explanation as to why he did not attend the
scheduled VA examinations. The July 2008 supplemental
statement of the case specifically discusses his failure to
appear; however, he has not contacted VA with any
explanation. While VA has a duty to assist the veteran in
the development of his claim, the veteran has a duty to
cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190
(1991). Furthermore, while VA does have a duty to assist the
veteran in the development of a claim, that duty is not
limitless. Hyson v. Brown, 5 Vet. App. 262 (1993). Here,
any VA development assistance duty under the VCAA to seek to
obtain indicated pertinent information and records has been
fulfilled. In the absence of the veteran's cooperation in
the development of his claim, there is no reasonable
possibility that additional requests would further his claim.
38 U.S.C.A. § 5103A (a)(2); 38 C.F.R. § 3.159.
Accordingly, VA has satisfied its duty to assist the veteran
in apprising him as to the evidence needed, and in obtaining
evidence pertinent to his claim under the VCAA. Therefore,
no useful purpose would be served in remanding this matter
for yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court has
held that such remands are to be avoided. Sabonis v. Brown,
6 Vet. App. 426, 430 (1994).
For all the foregoing reasons, the Board concludes that VA's
duties to the veteran have been fulfilled with respect to the
issue on appeal.
Criteria & Analysis
Non service-connected pension benefits are payable to a
veteran who served for 90 days or more during a period of
war, which is not in dispute here, and who is permanently and
totally disabled due to non service-connected disabilities
that are not the result of his or her own willful misconduct.
38 U.S.C.A. § 1521; see also Dilles v. Brown, 5 Vet. App. 88,
89-90 (1993) and cases cited therein. If a veteran's
combined disability is less than 100 percent, he or she must
be unemployable by reason of disability. 38 C.F.R. §§ 3.321,
3.340, 3.342 and Part 4; see also Brown (Clem) v. Derwinski,
2 Vet. App. 444, 446 (1992).
Disability evaluations are determined by the application of
the VA schedule of ratings which is based on average
impairment of earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R. § 3.321(a), Part 4. The basis of disability
evaluations is the ability of the body as a whole, or of the
psyche, or of a system or organ of the body to function under
the ordinary conditions of daily life including employment.
38 C.F.R. § 4.10.
In this case, to be eligible for VA pension, the evidence of
record must demonstrate that the veteran is permanently and
totally disabled from nonservice-connected disabilities that
are not the result of his own willful misconduct. For the
purposes of pension benefits, a person shall be considered to
be permanently and totally disabled if such person is
unemployable as a result of disability reasonably certain to
continue throughout the life of the disabled person, or is
suffering from, (1) any disability which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation, but only if it is
reasonably certain that such disability will continue
throughout the life of the disabled person; or (2) any
disease or disorder determined by the VA Secretary to be of
such a nature or extent as to justify a determination that
persons suffering therefrom are permanently and totally
disabled. See 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.340(b),
4.15. One way for a veteran to be considered permanently and
totally disabled for pension purposes is to satisfy the
"average person" test of 38 U.S.C.A. § 1502(a) and 38
C.F.R. § 4.15. See Brown v. Derwinski, 2 Vet. App. 444
(1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet
this test, the veteran must have the permanent loss of use of
both hands or feet, or one hand and one foot, or the sight of
both eyes, or be permanently helpless or permanently
bedridden; or the permanent disabilities must be rated,
singly or in combination, as 100 percent. The veteran does
not meet any of these criteria.
All veterans who are basically eligible for pension benefits
and who are unable to secure and follow a substantially
gainful occupation by reason of disabilities, which are
likely to be permanent, shall be rated as permanently and
totally disabled. For the purposes of entitlement to pension
benefits, the permanence of the percentage requirements of 38
C.F.R. § 4.16 is a requisite. When the percentage
requirements are met, and the disabilities involved are of a
permanent nature, a rating of permanent and total disability
will be assigned if the veteran is found to be unable to
secure or follow substantially gainful employment by reason
of such disability. Prior employment or unemployment status
is immaterial if in the judgment of the rating board the
veteran's disabilities render him or her unemployable. See
38 C.F.R. § 4.17. The percentage requirements of 38 C.F.R. §
4.16 are as follows: if there is only one disability, this
disability shall be ratable at 60 percent or more; if there
are two or more disabilities, there shall be at least one
disability ratable at 40 percent or more with sufficient
additional disability to bring the combined rating to 70
percent or more. See 38 C.F.R. § 4.16.
Where the evidence of record establishes that an applicant
for pension who is basically eligible fails to meet the
disability requirements based on the percentage standards of
the rating schedule but is found to be unemployable by reason
of his disabilities, age, occupational background and other
related factors, a permanent and total disability rating for
pension purposes may be assigned on an extra- schedular
basis. See 38 C.F.R. § 3.321(b)(2), 4.17(b).
Service connection is not in effect for any disabilities. A
June 2007 Board decision denied entitlement to service
connection for chronic disability manifested by joint
stiffness; chronic right knee disability; acquired
psychiatric disorder, to include a psychosis, depression,
and/or post-traumatic stress disorder; and a personality
disorder. The veteran's initial claim for pension was
received in December 1999. At that time, while he submitted
a VA Form 21-0517, Improved Pension Eligibility Verification
Report, he did not claim a specific permanent and total
disability.
This matter was remanded in June 2007 to afford the veteran a
VA examination to assess the nature and severity of his
claimed disabilities, and to assess his ability to maintain
employment. The veteran, however, failed to appear for such
examination, and has not responded to VA notices.
Information was received from the veteran regarding
employment income in 2006 and 2007.
The veteran has claimed joint stiffness in his knees and left
wrist. At a February 2005 VA examination, examination of the
left wrist was normal, and examination of the knees was
normal, but for objective findings of crepitus. The
diagnosis was patellofemoral syndrome of the knees with
residuals, and normal left wrist. The examiner explained
that patients with pain that have essentially normal physical
findings are often given the diagnosis of joint strain, or in
the case of the knees, patella femoral syndrome, which is
consistent with his presentation. Thus, based on such
objective findings, the veteran's left wrist and knees would
be rated noncompensably disabling. See 38 C.F.R. § 4.71a,
Diagnostic Codes 5215, 5260.
VA outpatient treatment records reflect treatment for
migraines, peptic ulcer disease and hypertension; however,
the records do not reflect that such disabilities are
permanently and totally disabling.
The veteran has claimed entitlement to post-traumatic stress
disorder (PTSD); however, as discussed in the June 2007 Board
decision, a February 2005 VA examiner concluded that he did
not meet the criteria for a diagnosis.
The veteran has also been variously treated for polysubstance
abuse, depression, schizophrenia, dysthymia, and personality
disorder. However, at the February 2005 VA examination, the
examiner concluded that the veteran did not have an acquired
psychiatric disorder, and has a personality disorder.
In July 2007, the veteran underwent a VA mental status
examination and competency interview. Upon interview and
mental status examination, the examiner noted that review of
the evaluation was limited due to the narrow focus of the
interview that the veteran cut short, thus preventing
thorough exploration of his reported psychotic disorder. The
examiner opined that it is clear that his psychiatric
impairment does not include severe cognitive deficits, as
noted on mental status testing. When he allows
nonconflictual discussion of his treatment, he is able to
voice at least partial understanding of his condition and
some willingness for further trials of antipsychotic
medications that might cause him less sedation. Clear
evidence of dangerousness to self or others was not present,
despite his readiness for hostility and agitation. However,
whether related to a psychotic disorder, severe personality
disorder, and/or substance-induced exacerbation of both, the
veteran's irritability and impulsivity appear to be the major
barrier to his treatment. Substance abuse and periods of
increased stress are likely to result in more severe
symptomatology and at least temporary periods of greater
decision-making impairment than seen in the evaluation. The
Axis I diagnosis was paranoid schizophrenia by history and
rule out mild cognitive impairment; the Axis II diagnosis was
personality disorder not otherwise specified; the Axis III
diagnosis was history of chronic pain (arthritis, arthralgia,
degenerative joint disease); and the Axis IV diagnosis was
severe financial and health problems. The examiner assigned
a Global Assessment of Functioning (GAF) score of 45.
It is clear to the Board that the veteran suffers from
schizophrenia and personality disorder, and that based on the
July 2007 GAF score assigned this denotes serious symptoms
(e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or serious impairment in social,
occupational, or school functioning. Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 1994)
("DSM-IV") (100 representing superior functioning in a wide
range of activities and no psychiatric symptoms); see also 38
C.F.R. §§ 4.125, 4.126, 4.130. Although severe, it does not
appear that his personality disorder and schizophrenia would
meet the criteria for a 100 percent disability rating.
38 C.F.R. § 4.130, Diagnostic Code 9204. However, such
examination report does not provide an opinion as to whether
such mental disabilities constitute a permanent and total
disability, and the examination report does not reflect an
opinion with regard to his ability to maintain employment.
Despite the fact that his mental disabilities are indicative
of serious symptoms, VA outpatient treatment records reflect
employment over the course of this appeal. The most recent
communication from the veteran, the VA Form 5655, reflects
employment and income.
Recent VA outpatient treatment records dated in March 2008
reflect that he was employed in construction. A June 2008
mental health clinic record is to the effect that the veteran
reported that had quit his employment as a long distance
truck driver and was looking for another job. He reported
that he was doing well and denied any current symptoms of
psychosis, auditory or visual hallucinations, paranoia,
delusions, depression or mania. On mental status
examination, the veteran was neatly dressed and groomed,
oriented times three, pleasant and cooperative with good eye
contact. There was no evidence of agitation or hostility.
Speech was reported to be normal, and thought process was
linear and goal directed. Mood was described as o.k. and
affect was pleasant. Insight and judgment were fair.
Another June 2008 record just two weeks before noted a
history of disruptive behavior, but indicated that the
veteran was quite friendly, interactive and not intimidating
or disruptive in any way. A December 12, 2008, letter from
the veteran with additional argument is also of record.
The evidence of record clearly shows a level of impairment
due to the veteran's overall disabilities. However, the
critical question with regard to the issue on appeal is
whether the veteran's disorders render him permanently and
totally disabled. Unfortunately, additional examination was
not accomplished as discussed earlier. However, the Board
views the current evidence as weighing against a finding of
permanent and total disability. It appears that the most
significant impairment is related to the veteran's
psychiatric status. The veteran does not have disabilities,
which would meet the "average person" test for permanent
and total disability in that he does not have permanent loss
of use of both hands or feet, or one hand and one foot, or
the sight of both eyes, or be permanently helpless or
permanently bedridden; or the permanent disabilities must be
rated, singly or in combination, as 100 percent. See 38
U.S.C.A. § 1502(a); 38 C.F.R. §§ 4.15, 4.17.
A permanent and total disability rating for nonservice-
connected pension purposes may still be granted on an
extraschedular basis if the veteran is subjectively found to
be unemployable by reason of his disabilities, age,
background, and related factors. Per the evidence of record,
however, the veteran is 36 years old, has a high school
degree, and per his most recent financial statement he
reported current and past employment. While he reported
quitting his job in June 2008, it was noted that he intended
to look for another job. While he reported stress as a
reason for quitting his job, there is otherwise no indication
that he quit such job as a result of his nonservice-connected
disabilities, to include his mental disabilities. The
veteran's nonservice-connected disabilities, when evaluated
in association with his educational attainment, occupational
background, and age, are not shown to have permanently
precluded all kinds of substantially gainful employment. In
light of the foregoing, the veteran is not entitled to a
nonservice-connected disability pension, and the claim for
that benefit is denied.
ORDER
The appeal is denied.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs